By now, most people who pay attention to current affairs in general and to courts in particular know that liberals decades ago, when they realized they couldn’t achieve their social and economic goals through popularly elected state legislatures, decided to make their last stand for political dominance through the judiciary. Regrettably, they’ve succeeded. Witness the results, beginning in the days of the so-called Warren Court, in cases involving prisoner’s rights, capital punishment, Affirmative Action, administrative regulation, eminent domain, and more.

There is no worse example than Roe v.Wade. It didn’t matter that fifty state legislatures— representing thousands of legislators, who in turn represented millions of constituents—had enacted laws inhibiting abortion. All the liberals had to do was convince at least five justices of the United States Supreme Court that there was a hitherto undiscovered constitutional “right of privacy,” and with five strokes of the pen (actually, Roe was decided 7-2) the democratically expressed anti-abortion laws of those legislators and their constituents would be, and were, nullified.

For decades, the left-wing’s tactics were emulated by the Legal Left to further their pro-Communist, anti-American agenda. A gaggle of Congressmen sued over the legality of providing military aid to El Salvador (Crockett v.Reagan). English ladies, joined by American Congressmen Ron Dellums and Ted Weiss, sued to enjoin the deployment of cruise missiles in their town (Greenham Womenv.Reagan). Another group of legislators sued to declare the invasion of Grenada unconstitutional (Conyers v. Reagan). Still other Congressmen sued to force President Reagan to file status reports under the War Powers Resolution. (Lowryv.Reagan). An “ordinary citizen” sued to block military action in Gulf War I. (Pietschv.Bush). Traitors like Jane Fonda and Tom Hayden, who gave aid and comfort to the North Vietnamese Communists, were counseled by the Legal Left about how they could travel to Hanoi yet avoid prosecution.

Immediately after the attacks of September 11, 2001, the Legal Left morphed into a pro-terrorist, anti-American Fifth Column, and aimed their considerable firepower at our government’s attempts to defend America (The Encarta Dictionary defines “fifth column” as meaning “any group of people who give aid and support to the enemy from within their own country.” Those who do are called “fifth columnists.”)

Prominent among them was lawyer Lynne Stewart, counsel for the incarcerated sheik-mastermind of the first attack on the World Trade Center. Stewart has promoted anti-American causes for years and recently was convicted for aiding the sheik in communicating with his followers while incarcerated. Former United States Attorney General Ramsey Clark piously defends the likes of Saddam Hussein and the mad ayatollahs of Iran, while opposing every attempt by Americans to defend themselves from their Islamofascist attackers. Stanley Cohen’s incendiary statements, the nature of his clientele, his unbridled animus toward the United States, his identification with terrorists and their cause, and his apparent willingness to do virtually anything in their defense, make clear that he is using the American legal system to advance an anti-American, pro-terrorist, agenda. All of these lawyers can fairly be characterized as members of today’s fifth column.

In a close race with the ACLU for the most pro-terrorist, anti-American organization of the Legal Left is the Center for Constitutional Rights (CCR). When the September 11attacks occurred, it was manna from heaven for the CCR. It attacked the government’s detention of alien detainees, described by the CCR as the “real” victims of September 11. CCR attacked President Bush’s order creating military commissions. CCR attacked the Patriot Act, which arms this and all future administrations—Republican and Democrat alike—with the weapons we’ll need to fight this unconventional war. CCR attacked American cooperation with friendly intelligence services. CCR represented a terrorist named Rasul and squeezed a 5-4 decision out of the Supreme Court of the United States that enemy combatants are entitled to due process of law.

The Left and its platoons of lawyers had their fingerprints all over a recent case in the United States Court of Appeals for the District of Columbia Circuit asserting that enemy combatants are entitled to Geneva Convention protection, and that the President had no right to create military commissions to try Guantanamo prisoners.

In that case, Hamdan v. Rumsfeld, the government was supported by only two amicus curiae (“friend of the court”) briefs. The terrorist was supported by briefs from scores of American law professors, hundreds of British and European legislators, and such organizations as Human Rights First, People for the American Way, World Organization for Human Rights USA, and the Urban Morgan Institute for Human Rights.

It is of some consolation that the three-judge panel unanimously ruled against the terrorist, but the case is far from over. The Georgetown Law professor who represented the terrorist has proclaimed that he may ask the entire Court of Appeals to rehear the case. Whether or not that happens, Hamdanv.Rumsfeld is headed for the Supreme Court of the United States. And when it gets there, the Legal Left will be out in force, filing dozens of amicus curiae briefs in support of that particular terrorist and, by implication, all other terrorists currently known and later to be captured.

There is a case currently in the United States Court of Appeals for the Fourth Circuit which raises the question of whether an American citizen accused of being an al Qaeda operative can be held indefinitely without charges. Jose Padilla, the so-called Dirty Bomber designated by President Bush as an enemy combatant, has already won a round: a federal district judge (appointed by the president at the behest of Senator Lindsey Graham) ruled that Padilla can not be held indefinitely.

After the Fourth Circuit rules, the case will head for the Supreme Court.

When it gets there, who will speak for America, and its threatened citizens, the potential victims of a dirty bomb? Surely the government—and probably the stalwart Washington Legal Foundation, and one or two other anti-terrorist, pro-American legal organizations. But as things stand now, probably no one else.

To be sure, there are some fine conservative and libertarian organizations that litigate on behalf of legitimate personal and property rights issues, among them Judicial Watch, the Institute for Justice, and the Individual Rights Foundation. But they have their own defined portfolios, and none of them are devoted exclusively to fighting the War on Terror in the courts of this land.

It is about time—indeed, the time is long past time—that such an organization be formed. All that’s necessary is a non-profit 501( c)3 entity that could raise tax-deductible contributions for the sole purpose of filing amicus curiae briefs in all federal litigation, civil and criminal, connected with the War on Terror.

My 46 years of experience as a practicing lawyer tells me that the anti-terrorist, pro-America legal talent is available, even on a pro bono basis. Probably, the financing is there, as well—especially because filing amicus curiae briefs is not a very costly undertaking. Given the talent and the financing, what else is needed?

In a word, the will.

The anti-terrorist, pro-America legal community—call it the Legal Defenders of Freedom—must get engaged on an organized basis. Itmustfight the Legal Left in every judicial forum in the United States where it rears its ugly head.

Until now, patriotic lawyers have mostly abandoned the field to the Legal Left. That abdication has already had dangerous consequences.

If we are to keep terrorists and other enemy combatants confined at Guantanamo, if we are to prevent them from being regarded as mere prisoners of war entitled to Geneva Convention protections, if we are to treat them and their ilk still at large around the world as the nihilistic killers they are, then we will have to fight in America’s federal courts—and, in so doing, blunt the prodigious and highly dangerous efforts of the Legal Left.

If we do not make this fight, at minimum the War on Terror will continue to be seriously compromised.

At worst, it could be lost.

Henry Mark Holzer, Professor Emeritus at BrooklynLawSchool, is a constitutional lawyer and author
most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A
Conservative’s
Perspective.

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